Sumlin and Sons, Inc., WAB 95-08 (WAB Nov. 30, 1995)
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
With respect to application of Wage
Determination No. AL94-4 to construction under
Contract No. DACA-94-C-0120 for the upgrade
of an ammunition storage facility at Fort McClellan
Calhoun County, Alabama.
BEFORE: Karl J. Sandstrom, Presiding Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
DATED: November 30, 1995
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of Sumlin and Sons, Inc. (Petitioner or Sumlin) seeking review of
the June 19, 1995 final ruling of the Administrator, Wage and
Hour Division (Administrator). In her determination, the
Administrator denied Petitioner's request to add the additional
wage classification "reinforcing rods-concrete" to Davis-Bacon
Wage Determination (WD) No. AL94-4 which was incorporated into
and governed wage rates under Contract No. DACA-94-C-0120 with
the Department of Army Corps of Engineers (Corps). For the
reasons stated below, the Administrator's ruling is affirmed.
I. BACKGROUND
On June 21, 1994, Sumlin was awarded a contract by the Corps
for construction work at Fort McClellan, Calhoun County, Alabama.
The contract was governed by the wage standards of the
Davis-Bacon Act, 40 U.S.C. 276a-276a-7, and incorporated WD No.
AL94-4. On July 18, 1994, Sumlin commenced work on the contract.
On July 25, 1994, Sumlin submitted to the Corps a [1][2]
Standard Form 1444 requesting the addition of a "Re-inforcing
rods - concrete" classification to the WD at a rate of $10.11 per
hour with no fringe benefits. In making its conformance request,
Sumlin stated that it did not consider the classification of WAB Case No. 95-08
Ironworker in the WD to encompass the work performed. The Corps
approved the request subject to the approval of the
Administrator, Wage and Hour Division.
By letter of December 1, 1994, the Wage and Hour Division
initially denied Sumlin's conformance request. Wage and Hour
gave the following reason for denying the conformance request for
the additional classification:
The request for Ironworker Reinforcing rods cannot be
approved because the work to be performed by this
classification may be performed by a classification
already in the wage decision. (See section
5.5(a)(1)(ii)(A)(1)). The appropriate classification
is Ironworker at $14.28 plus fringe benefits of $5.25.
Wage and Hour based its decision on the results of the most
recent survey of Building wage rates in Calhoun County,
Alabama. During the time period covered, the survey showed 46 of
49 workers performing reinforcing work receiving the rate in the
WD for the Ironworker classification.
Sumlin sought reconsideration of the Wage and Hour decision
by letter dated February 13, 1995. In support of its request
for reconsideration, Sumlin relied on a publication entitled
Scopes of Basic Manual Classifications produced by the National
Council of Compensation Insurance to argue that reinforcing steel
work is more appropriately classified as concrete work than
ironwork. Ironwork, Petitioner contended, covers only
structural steel work. Petitioner also took issue with the
accuracy of the wage survey on which the Administrator relied.
Petitioner questioned whether all of the workers on the projects
identified in the survey actually performed concrete reinforcing
work.
Prior to the Administrator's ruling on the request for
reconsideration, Wage and Hour contacted the employer who
supplied the majority of data in the survey. Wage and Hour was
able to confirm that some of the workers identified by the survey
did indeed perform steel reinforcing work. On June 19, 1995 the
Administrator denied Petitioner's request, finding that
Petitioner failed to satisfy one of the regulatory criteria for
conformance. Specifically, the Administrator found that
employees falling within the Ironworker classification did in
fact perform concrete reinforcing work in the area.[2]
[3] II. DISCUSSION
The question for the Board is whether the Administrator's
denial of Sumlin's request to have the additional wage
classification "reinforcing rods-concrete" added to the wage
determination was proper. Our inquiry begins with a review of
the regulations governing the conformance process. As set out at
29 C.F.R. [sec] 5.5(a)(1), a conformance request may be approved
when it satisfies the following three criteria:
(1) The work to be performed by the classification
requested is not performed by a classification in the
wage determination;
(2) The classification is utilized in the area by the
construction industry; and
(3) The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.[3]
[4] Applying these factors to Sumlin's request, the
Administrator refused to conform the classification because she
found that the request failed to satisfy the first criterion.
The Administrator established that "Ironworkers" did perform
concrete reinforcing work in the area. Her finding was based on
a survey of employers and its results were confirmed by
interview.
Petitioner's challenge to the Administrator's ruling
proceeds from a basic misunderstanding of the conformance
regulation. The conformance regulation does not require the
Administrator to conduct a de novo proceeding to retroactively
determine the prevailing wage for a particular job. Tower
Construction, WAB Case No. 94-17, Feb. 28, 1995. The fact that
other contractors in the area have paid employees performing the
same or similar work more or less than the classification of
employees in the wage determination is largely irrelevant. To
deny a request for conformance, the Administrator need only find
that workers falling within a classification in the wage
determination do, in fact, perform the work in question.
When a contractor fails to timely challenge a wage
determination, the contractor runs the risk that workers falling
within a classification set out in the wage determination do
perform some of the work in question, even if that is not the
prevailing practice in the area. As stated above, the
conformance process is not intended to duplicate the original
wage determination procedures. Consequently, Petitioner's
contention that it is not the prevailing practice in the area to
employ "Ironworkers" to do concrete reinforcing work, even if
shown to be true, would not be sufficient ground to reverse the
Administrator's ruling.
To support its argument that "Ironworkers" do not perform
concrete reinforcing work, Petitioner relies on the Scopes of
Basic Manual Classifications. This manual is of dubious
relevance in that it does not purport to classify workers for
local compensation purposes, but is used as a national guide to
allocate costs of workers' compensation premiums. See J.A.
Languet Construction Company, WAB Case No. 94-18, Apr. 27, 1995,
slip op. at 8. Any limited relevance it might have would be in a
proceeding challenging a wage determination. It is of no value
in reviewing the Administrator's factual finding in the context
of this conformance proceeding where the record supports the
conclusion that "Ironworkers" perform some concrete reinforcing
work in the Calhoun County area.
To prevail, Petitioner had to demonstrate that the
Administrator's ruling lacked a factual foundation in the record.
It is not enough to suggest that a more thorough wage survey
would have yielded a different wage determination. The
Administrator -- in considering a conformance request -- is not
held to the same [4][5] standards and procedures used in
initially promulgating wage determinations. As the Board stated
in Clark Mechanical Contractors, Inc., supra at 5:
In conformance the Administrator is required only to be
fair and reasonable, not precise. To require precision
at this stage would impose enormous burdens on both the
conformance and procurement processes. It would also
remove the contractor's obligation to challenge the
accuracy and completeness of the wage determination at
the beginning of the solicitation and procurement
process. Such a rewriting of the regulations governing
the setting of wage determinations would not only be
beyond the jurisdiction of the Board but would open the
door to mischief in the procurement process.
In summary, the Board concludes that the Administrator's
finding that workers falling within the classification of
"Ironworker" in the wage determination performed concrete
reinforcing work is supported by the record. Consequently, the
Administrator's determination that Petitioner failed to satisfy
the first criterion of the conformance regulation was proper and
the Administrator's ruling is therefore affirmed.
BY ORDER OF THE BOARD:
Karl J. Sandstrom, Presiding Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
Gerald F. Krizan, Esq. Executive Secretary[5]
